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Westminster update: lord chancellor speaks at new president's inauguration
Your weekly update from our public affairs team on all the latest developments and debates in Parliament and across Whitehall.
One thing you need to do
Watch David Greene's inauguration as the 176th president of the Law Society, featuring speeches from the lord chancellor and the lord chief justice.
Five things you need to know
1. Lord chancellor speaks at inauguration of new Law Society president
Last Wednesday, the lord chancellor, Robert Buckland QC MP, spoke at David Greene’s inauguration as president of the Law Society. He delivered a message of congratulations and support and spoke about the negative rhetoric on lawyers.
The lord chancellor said that the government condemn all attacks, violence or intimidation against lawyers. He said that “no one should be vilified for doing their job” and “any form of violence or abuse against lawyers is unacceptable”.
He also touched on the use of social media and how it has created a new platform which can lead to misunderstandings, but stated that it should not be used for intimidation or abuse.
The lord chancellor reiterated that lawyers play a crucial role in upholding the rule of law. He said that everyone in this profession has a duty to each other and that he will play his part to help lawyers do their jobs.
The lord chief justice, Lord Burnett of Maldon, also spoke at the inauguration, sending a message of support and highlighting the importance of an independent judiciary and court modernisation.
2. Lords EU Services Sub-Committee publishes Brexit report
Last Tuesday, the Lords EU Sub-Committee on Services released its report on the future UK-EU relationship for professional and business services.
We submitted written evidence to the inquiry that preceded the report, and our then-president Simon Davis appeared before the Sub-Committee in June. We're mentioned 12 times in the text of the report, and Simon is mentioned by name four times.
The report finds that:
- professional and business services provided £225 billion gross value added to the UK economy in 2019 and employed 13% of the UK workforce. It's the UK's leading services export, valued at £96 billion, which is over three times the value of the UK's leading goods export, cars. The EU is the largest market, amounting to 37% of the UK’s professional and business services exports (£35 billion)
- professional and business services are closely linked to the financial services sector and the creative industries, both of which face some of the same vulnerabilities and threats raised in this report
- a free trade agreement on services is no silver bullet, but there are a number of areas that both sides need to get right to limit potential barriers to trade
- national reservations to the agreement such as economic needs tests and rules on local presence could be catastrophic for the UK's professional and business services sectors
- the sector relies on professionals being able to travel between the UK and EU to deliver their services at short notice. The Committee urges the government to ensure that temporary business mobility is covered by an agreement with the EU, and that arrangements on the duration and nature of permitted business travel are comprehensive
- the mutual recognition of professional qualifications is one area where a bad deal could be worse than no deal. The Committee supports the UK's position that mutual recognition should be the default position as professionals will not be able to deliver their services if their qualifications are not recognised
- a UK-EU agreement must protect the existing UK intellectual property framework and provide effective enforcement of intellectual property rights for the UK's creative and intellectual property rich sectors
- the Committee is alarmed about the lack of an EU decision on the data adequacy of the UK framework and the absence of most decisions on financial services equivalence and audit adequacy. The government must push for these assessments to be concluded as soon as possible, to give businesses in the UK and EU legal certainty and time to prepare
This is largely in line with our position on the future relationship, and covers the areas we particularly highlighted in our evidence:
- intellectual property
- data adequacy
The government response to the report is due on 13 December.
3. MPs debate the rule of law
Last Wednesday, MPs held a short Westminster Hall debate on the lord chancellor’s oath and rule of law, led by SNP Justice spokesperson Joanna Cherry QC MP. Cherry mentioned us four times during the debate, in relation to the Home Secretary’s rhetoric on lawyers and the Internal Market Bill.
Cherry argued that the Internal Market Bill, the Overseas Operations Bill, and the Covert Human Intelligence Sources Bill are all “unprecedented in legal terms” and that the latter two “seek to create special classes of defendants in domestic law in respect of whom the criminal law will not apply” in the same way as it does to a normal person.
Sir Bob Neill MP, chair of the Justice Select Committee, contested that the House of Commons has “sought to improve that Bill.” He went on to say that the contention that the Bill is constitutionally improper “is a legitimate area of legal dispute and the lord chancellor is entitled to have a different view.”
Responding for the government, the justice minister, Alex Chalk MP, argued that the Internal Market Bill “has been designed to offer businesses the certainty they need and to protect trade and jobs in every part of the UK.” He acknowledged that strong arguments have been made that the “very existence of the Bill is a breach of duty of good faith,” but said that “there are strong arguments in all sorts of directions.” He said that Part 5 of the Bill would be used “only in the case of, in our view, the EU being engaged in a material breach of its duties of good faith or other obligations, and thereby undermining the fundamental purpose of the Northern Ireland Protocol.”
Cherry referred to the home secretary’s use of the term “activist lawyers”, and the subsequent knife attack at a firm. She mentioned that we had written to the home secretary asking her to curb her language, and observed that the home secretary has instead “doubled down” and “been joined in it by the prime minister.”
Her concerns were echoed by shadow lord chancellor David Lammy MP, who accused the home secretary of “inciting anger against immigration lawyers for representing some of the most vulnerable people in our society” and warned that “words have consequences,” before quoting from our letter.
In his response Chalk quoted from the speech that lord chancellor Robert Buckland QC MP delivered at the opening of the legal year: “It is wholly wrong for any professional to be threatened, harassed or worse, attacked simply for doing their job – we must call it out and deal with it. And make the point that those who attack people providing a professional service will be subject to that very same Rule of Law.”
4. Lord chancellor appears before Constitution Committee
Last Wednesday, the lord chancellor, Robert Buckland QC MP, gave evidence before the House of Lords Constitution Committee as part of an inquiry into the Internal Market Bill. We've briefed through the passage of the Bill and our concerns have been referenced by senior figures on all sides of the House.
The Committee chair, Baroness Taylor of Bolton (Labour), began by asking Buckland how he squares his oath to uphold the rule of law with the clauses in the Bill which permit breaches of international law.
Buckland said it was important to view the Bill in its political context, and said the clauses would only be invoked in the case of “a demonstration of bad faith on the part of the EU with an important, negative, effect not just on the operation of the internal market but… on the Northern Ireland Good Friday/Belfast agreement process itself.” He followed up by saying it is important not to “elide issues of the rule of law with matters of policy and politics.”
Lord Dunlop (Conservative) asked whether there is reason to suspect that a breach by the EU of its obligations is imminent, and if not, why the provisions on derogation are necessary.
Buckland said that he was “not going to start today imputing bad faith on the part of the EU, but the fact remains that we have not yet reached agreement.” He went on to argue that the government needs to be realistic, and suggested “there could be a material breach by one of the parties and we would have done nothing to prepare ourselves in domestic law to protect the internal market and the integrity of the peace process.”
Lord Pannick (Crossbench) asked about Clause 47 and its impact on the courts.
Buckland said that “it does not exclude the court’s ability to judicially review these regulations,” and that “there was never any intention or effect for there to be a general ouster of judicial review.” He went on to clarify that regulations made under Clauses 44 and 45 are capable of being reviewed under ordinary public law grounds.
Lord Pannick rejoined that he “cannot see how [Buckland] can claim credit for not excluding judicial review while at the same time Clause 47 immunises any regulations from any challenge by reference to any principle of domestic law.”
5. JCHR takes evidence on judicial review and human rights
Last Monday, the Joint Committee on Human Rights held an evidence session on the role of judicial review in enforcing human rights. The Committee took evidence from:
- Alison Pickup, legal director at the Public Law Project
- Professor Alison Young
- Sir David Williams, professor of public law at the University of Cambridge
- Polly Glynn, partner at Deighton Pierce Glynn
- Lord Dyson, former master of the rolls and supreme court justice
On the question of the value of judicial review in enforcing human rights, Alison Pickup said that it operates at three levels:
- first, at the individual level it gives people an avenue to seek remedy for violations of their rights
- second, at the level of law and systems it ensures there are checks and balances in place to ensure laws, policy and regulations are in line with human rights
- third, at the structural level it ensures there is respect for the rule of law
With regard to effectiveness, she argued that judicial review’s effectiveness in enforcing human rights is hampered by barriers to access, including restrictions of legal aid and costs.
Polly Glynn provided the perspective of a legal aid practitioner, arguing that many meritorious cases are not taken on because legal aid firms do not have the capacity to take them on. She also noted in some instances legal aid practitioners will not be paid after taking on a judicial review case, such as when a successful judicial review did not ultimately result in a changed policy or decision.
All the witnesses were asked to give their thoughts on whether improvements could be made to judicial review in light of the ongoing work of the Independent Review of Administrative Law.
Alison Pickup argued for allowing parties to agree an extension to the time limit to help increase opportunities for negotiation that avoid the need for a court judgment. Professor Alison Young suggested that courts should be allowed to make quashing orders with delayed effect in instances where immediate quashing orders might adversely impact the UK’s international obligations.
We've recently published a statement of the fundamental principles of judicial review, outlining the key features that must be protected in any proposals for reform.
Coming up this week
The Immigration Bill is back for consideration of amendments, with the House of Commons set to vote on the Lords' amendments on Monday before the Lords in turn consider the Commons' additional amendments on Wednesday.
Other legislative business includes the Overseas Operations Bill, which will be considered by a public bill committee on Tuesday and Thursday, and the Internal Market Bill, which has its second reading in the House of Lords on Monday.
Thursday will see a Westminster Hall debate hosted by the chair of the Justice Select Committee, Sir Bob Neill, on MoJ spending on legal aid, while Treasury ministers will take questions in the Commons on Tuesday.
If you made it this far
We've published a discussion paper as part of a project on lawtech, ethics and the rule of law, and we're now holding a six week consultation asking for views on the issues outlined in the paper.